Wright v. Reusens

• Decision Date: 24 May 1892
• Citation: 133 N.Y. 298,31 N.E. 215
• Parties: WRIGHT v. REUSENS.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 298

31 N.E. 215

WRIGHT

v.REUSENS.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, second department.

Action by James R. Wright against Cuillaume Reusens and otehrs to obtain a mechanic's lien in prority of all others on the land and buildings owned by Reusens, and a judgment for any deficiency therein against him for the price of labor and materials expended in erecting said buildings. From a judgment entered at special term upon a referee's report in favor of plaintiff, defendant Reusens appeals. Affirmed.

Billings & Cardozo,(Michael H. Cardozo, of counsel,) for appellant.

Cyrus William Horton and Silas J. Owens, for respondent.

O'BRIEN, J.

The plaintiff in this case has recovered a judgment against the defendant for the value of his work and materials in altering and repairing a building, and the amount has been declared to be a lien, under the statute, against the premises on which the building stands. The form of the action was such as is usual in the foreclosure of a mechanic's lien. The complaint sets out a contract between the parties, and avers, in substance, that the plaintiff was prevented or excused from performance by reason of certain acts of the defendant. The referee has found that in August, 1888, the plaintiff and defendant entered into a contract in writing, whereby the plaintiff agreed to perform the labor and furnish the materials in making certain repairs, additions, and alterations in and upon a dwelling house on the plaintiff's premises, according to plans and specifications, for the sum of $5,544.50. The plaintiff entered upon the performance of this contract, and actually continued to work under it until discharged by the defendant; but the work contemplated was never completed by the plaintiff. The most important question in the case is the proper construction to be given to this contract. By its terms it was to be performed on or before December 1, 1888. It was also provided that in case the architect, who was, by the provisions of the contract, to see to its performancein all details and particulars, should certify to the defendant that the plaintiff had neglected, failed, or refused to perform, then the defendant might terminate the employment of the contractor, and employ others to finish the work and furnish the materials; and in that case the contractor should not be entitled to any compensation for what he had done under the contract, except to the extent of any balance of the contract price that might remain after paying for the work and materials expended by the defendant after such termination, and, if the cost of completing the work after the owner had elected to terminate the contract should exceed the balance of the contract price remaining in his hands, then the contractor was bound to make good to the owner such excess. On the 7th of January, 1889, the architect named in the contract delivered to the defendant a certificate, in which was stated that the plaintiff had refused, neglected, and failed to comply with the terms of the contract, and that sufficient ground existed for terminating the employment of the plaintiff, and for employing other persons to finish the work contemplated by the contract, and furnish the materials therefor. On the following day the defendant notified the plaintiff in writing that he had been furnished with such certificate, reciting its contents, and that he elected to terminate plaintiff's employment under the contract, and that he proposed to complete the work himself, or cause it to be completed. That the work contemplated by the contract was not completed when this notice was served is admitted. But the referee has found that the failure of the plaintiff to perform the contract within the time stipulated is attributable to the refusal of the defendant to pay the installments of the contract price when they became due. This proposition is deduced from another finding, to the effect that prior to December 1, 1888,-the date when the contract was to be performed,-the plaintiff had so far made performance as to entitle him to be paid the first two installments of the contract price, amounting to $2,500, and that he had been paid but $1,500; that the architect unreasonably refused to make and deliver to the plaintiff a certificate that the amount was due and payable under the contract, and that the defendant unreasonably refused to pay the same to the plaintiff, and that such wrongful action on the part of the architect and the defendant greatly impeded and delayed the plaintiff in the prosecution of the work. These findings, so far as they embrace and relate to matters of fact, were made by the referee upon evidence which was very conflicting, and, therefore, conclusive upon the court, as it cannot fairly be urged that they are wholly unsupported by proof. But when and in what manner the contract price was payable depends upon the construction of the contract itself, and presents a question of law. The contention of the defendant's counsel is that, as there was no time specified in the contract for the payment of the price, it was not payable until the work was completed, or not, at least, until the certificate of the architect was furnished that it was due and payable. The contract was evidently written upon a printed blank form in use for that purpose, and neither the time when nor the contingency upon which the several installments become due was distinctly expressed. But between the date of the contract in August and the time for its completion on December 1st the whole price was to be paid in four separate installments,-two of $1,000 each, one of $1,500, one of $1,744.50, and the balance of $300 to be paid on December 1st if the contract was fully completed on that day, ‘provided that in each case the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction.’ It was further provided that, in case any mechanic's lien chargeable to the contractor was filed which bound the land or the owner, then the defendant should have the right to retain from ‘any payment then due or thereafter to become due’ an amount sufficient to discharge the same. It is quite evident that the parties intended that the...